Citation Nr: 0302136
Decision Date: 02/04/03 Archive Date: 02/19/03
DOCKET NO. 96-27 381A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for sinusitis.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. Hal Smith, Counsel
INTRODUCTION
The veteran served on active duty from August 1943 to
February 1946.
This matter is before the Board of Veterans' Appeals (Board)
on an appeal of a February 1996 rating decision of the
Regional Office (RO) in Waco, Texas. The, in pertinent part,
denied entitlement to service connection for sinusitis.
In October 2001, after adjudicating other issues then pending
on appeal, the Board remanded the claim to the RO for
additional evidentiary development and adjudicative action.
In July 2002 the RO most recently affirmed the determination
previously entered.
The claim has been returned to the Board for further
appellate review.
FINDING OF FACT
The probative, competent evidence establishes that the
veteran does not have sinusitis which is linked to service on
any basis.
CONCLUSION OF LAW
Sinusitis was not incurred in or aggravated by active
service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 & Supp. 2002);
38 C.F.R. §§ 3.102, 3.303. (2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
Factual Background
A review of the service medical records (SMRs) discloses that
they are negative for sinusitis. These records do reflect
that the veteran was shown to have a deviated nasal septum
shortly after service entrance (for which service connection
has been granted).
Treatment for sinus problems during service, to include
seasonal complaints or infectious type, is not shown.
Postservice private and VA records are available for review.
In a May 1996 statement, a private physician opined that the
service-connected left deviated nasal septum might contribute
to the veteran's sinusitis. VA X-rays of the sinuses in
November 1997 were interpreted as showing mucoperiosteal
thickening of the right maxillary sinus compatible with
chronic sinusitis. The other paranasal sinuses appeared
normally aerated. The examiner reported that there was no
direct relation between the veteran's chronic sinusitis and
service.
In a 2001 remand decision, the Board noted that the private
physician's opinion that the service connected deviated nasal
septum aggravated the veteran's sinusitis warranted further
evidentiary development. A special ear, nose, and throat
examination was scheduled and conducted in May 2002. Also
submitted were additional VA treatment records from 1999
through 2002.
The VA treatment records dated in 1999 and 2000 show that the
veteran had allergies that were under control with
medications. Records dated in 2001 reflect that he was found
to have a sinus infection and headaches which required the
use of antibiotics.
Upon examination in May 2002, the examiner noted that there
was an "allergic appearance" of the nasal mucosa with
middle and inferior turbinates described as somewhat boggy
and edematous, but with no significant degree of nasal
obstruction. The obstruction was estimated at approximately
20 percent on the left (deviated) side. There was no
inflammation or active infection by direct and fiberoptic
examination. The examiner reviewed the 1997 sinus X-rays and
stated that the mucoperiosteal thickening of the right
maxillary sinus was more indicative of an allergic problem.
The diagnostic conclusion was that of a mild allergic
rhinitis, with no evidence of acute or chronic sinusitis.
Criteria
Service connection may be established for a disability
resulting from personal injury suffered or disease contracted
in the line of duty or for aggravation of preexisting injury
suffered or disease contracted in the line of duty. 38
U.S.C.A. § 1110 (West 1991 & Supp. 2002); 38 C.F.R. § 3.303
(2002).
The United States Court of Appeals for Veterans Claims (CAVC)
has held that, in order to prevail on the issue of service
connection, there must be medical evidence of a (1) current
disability; (2) medical, or in certain circumstances, lay
evidence of inservice incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed inservice disease or injury and the present disease
or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (2002).
Where there is a chronic disease shown as such in service or
within the presumptive period under § 3.307 so as to permit a
finding of service connection, subsequent manifestations of
the same chronic disease at any later date, however, remote,
are service connected, unless clearly attributable to
intercurrent causes. 38 C.F.R. § 3.303(b) (2002).
This rule does not mean that any manifestations in service
will permit service connection. To show chronic disease in
service there is required a combination of manifestations
sufficient to identify the disease entity, and sufficient
observation to establish chronicity at the time as
distinguished from merely isolated findings or a diagnosis
including the word "chronic". When the disease entity is
established, there is no requirement of evidentiary showing
of continuity. When the fact of chronicity in service is not
adequately supported, then a showing of continuity after
discharge is required to support the claim. 38 C.F.R.
§ 3.303(b) (2002).
Disability which is proximately due to or the result of a
service-connected disease or injury shall be service
connected. Additionally, when aggravation of a veteran's
nonservice-connected condition is proximately due to or the
result of a service-connected condition, the veteran shall be
compensated for the degree of disability over and above the
degree of disability existing prior to the aggravation.
Allen v. Brown, 7 Vet. App. 439 (1995). 38 C.F.R. § 3.310
(2002).
When, after careful consideration of all of the evidence and
material of record, there is an approximate balance of
positive and negative evidence regarding the merits of an
issue material to the determination of the matter, the
benefit of the doubt in resolving each issue shall be given
to the veteran. 38 U.S.C.A. § 5107 (West Supp. 2002);
38 C.F.R. § 3.102 (2002); Alemany v. Brown, 9 Vet. App. 518,
519 (1996).
The Secretary shall consider all information and lay and
medical evidence of record in a case before the Secretary
with respect to benefits under laws administered by the
Secretary. When there is an approximate balance of positive
and negative evidence regarding any issue material to the
determination of a matter, the Secretary shall give the
benefit of the doubt to the claimant. 38 U.S.C.A. § 5107
(West Supp 2002).
Analysis
Duty to Assist
The Board initially notes that there has been a significant
change in the law during the pendency of this appeal. On
November 9, 2000, the President signed into law the Veterans
Claims Assistance Act of 2000 (VCAA), Pub. L. 106-475, §
7(b), 114 Stat. 2096, 2099-2100 (2000), 38 U.S.C.A. § 5107
note (Effective and Applicability Provisions).
Among other things, this law eliminates the concept of a
well-grounded claim and supersedes the decision of the CAVC
in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub
nom. Morton v. Gober, 14 Vet. App. 174 (2000) (per curiam
order), which held that VA cannot assist in the development
of a claim that is not well grounded.
This change in the law is applicable to all claims filed on
or after the date of enactment of the VCAA, or filed before
the date of enactment and not yet final as of that date.
VCAA, Pub. L. No. 106-475, § 7(b), 114 Stat. 2096, 2099-2100
(2000). 38 U.S.C.A. § 5107 note (Effective and Applicability
Provisions); see generally Holliday v. Principi, 14 Vet.
App. 280 (2001); see also Karnas v. Derwinski, 1 Vet.
App. 308 (1991).
On August 29, 2001, the final regulations implementing the
VCAA were published in the Federal Register. The portion of
these regulations pertaining to the duty to notify and the
duty to assist are also effective as of the date of the
enactment of the VCAA, November 9, 2000. 66 Fed. Reg. 45,
620, 45, 630-45, 632 (August 29, 2001) (to be codified at
38 C.F.R. § 3.159).
Where the law and regulations change while a case is pending,
the version more favorable to the appellant applies, absent
congressional intent to the contrary. Karnas v. Derwinski, 1
Vet. App. 308, 312-313 (1991). The Board is of the opinion
that the new duty to assist law has expanded VA's duty to
assist (e.g., by providing specific and expanded provisions
pertaining to the duty to notify), and is therefore more
favorable to the veteran. Therefore, the amended duty to
assist law applies. Id.
In the case at hand, the Board is satisfied that the duty to
notify and the duty to assist have been met under the new
law.
The duty to notify has been satisfied as the veteran has been
provided with notice of what is required to substantiate his
claim. The RO, through its issuance of its rating decisions,
statement of the case, supplemental statements of the case,
and associated correspondence, has given the veteran notice
of the information and evidence necessary to substantiate his
claim. That is, he was provided with notice of the
regulations pertaining to the disability at issue, a
rationale of the denial, and he was notified of his appellate
rights.
In correspondence dated in March 2001 and again in February
2002, the provisions and requirements of the VCAA of 2000
were discussed by the RO. 38 U.S.C.A. § 5103 (West Supp.
2002); 38 C.F.R. § 3.159. The Board also discussed the VCAA
in its October 2001 decision.
In this case, a preliminary review of the record shows that
VA has made reasonable efforts to obtain evidence necessary
to substantiate the veteran's claim. The Board notes that a
variety of extensive records have been associated with the
claims folder including SMRs, postservice private and VA
treatment records, as well as multiple VA examination
reports.
The evidence of record provides a complete basis for
addressing the merits of the veteran's claim as cited above
at this time. Therefore, the duty to assist has been
satisfied in this case. 38 U.S.C.A. § 5103A (West Supp.
2002); see also 66 Fed. Reg. 45,620, 45,630 (August 29, 2001)
(to be codified at 38 C.F.R. § 3.159).
In its many correspondences the RO has informed the veteran
of the evidence he should obtain and which evidence it would
retrieve as specified. The RO has in fact augmented the
evidentiary record in accordance with the veteran's
directives. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
As noted above, the RO has considered the veteran's claim
under the new law. In light of the foregoing, the Board is
satisfied that all relevant facts have been adequately
developed to the extent possible; no further assistance to
the appellant in developing the facts pertinent to his claim
is required to comply with the duty to assist him as mandated
by 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002).
Having determined that the duty to assist has been satisfied,
the Board turns to an evaluation of the veteran's claim on
the merits.
Service Connection for Sinusitis
The veteran contends that he incurred sinusitis in service
and that he still has this disorder. There is no evidence of
sinusitis in service. SMRs do not reflect a diagnosis of
sinusitis. They do show a deviated nasal septum for which
service connection has been established.
While the most recent examination in May 2002 found no
evidence of a current diagnosis of sinusitis, it is noted
that private and VA records since military service have
reported chronic sinusitis. A private physician reported in
1996 that the veteran's deviated nasal septum could have
aggravated his sinus condition resulting in more infections.
VA X-ray examination in 1997 showed mucoperiosteal thickening
of the right maxillary sinus which was noted to compatible
with chronic sinusitis. Additional examination was
subsequently requested to determine the etiology and severity
of the veteran's current ear, nose, and throat problems. As
a result of the requested examination, it was determined that
the veteran had symptoms that were the result of allergic
rhinitis, not sinusitis. It was noted that the 1997 X-rays
were indicative of an allergic problem. The diagnosis
included mild allergic rhinitis, suspected, and no evidence
whatsoever of sinusitis.
The Board finds this most recent medical opinion to have
great evidentiary weight. The VA examiner, as a specialist
in ear, nose, and throat disorders, is competent to render a
medical opinion as to the symptomatology. See Guerrieri v.
Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v.
Brown, 10 Vet. App. 279, 284 (1997).
The Board also finds this medical opinion to have great
evidentiary weight because the examiner extensively examined
the veteran and was familiar with his medical history. It is
noted that he reviewed the claims file.
There is no medical evidence of a diagnosis of sinusitis at
the current time, and as noted above, such disorder was not
shown in service, though it has been reported post service.
The veteran has submitted treatment records dated in 1994
through 2002 in support of a claim for service connection
for sinusitis. The Board points out that such treatment
records do reflect sinus complaints, but the examiner in 2002
attributed the veteran's complaints in recent years to
allergic rhinitis. No sinusitis was found.
The medical evidence of record shows that the sinus symptoms
are due to a nonservice-connected allergic problem. The
Board finds that this medical evidence establishes that the
veteran's symptoms are a manifestation of allergic rhinitis,
a disorder which is not the subject of the current appeal.
The veteran's own implied assertions that he currently has a
diagnosis of sinusitis that was incurred in service are
afforded no probative weight in the absence of evidence that
the veteran has the expertise to render opinions about
medical matters. Although the veteran is competent to
testify as to his in-service symptoms, where the
determinative issue involves a question of medical diagnosis
or causation, only individuals possessing specialized medical
training and knowledge are competent to render such an
opinion. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-5
(1992).
As noted above, the law governing the payment of VA
disability compensation provides that the United States shall
pay compensation for "disability resulting from personal
injury suffered or disease contracted in the line of duty..."
38 U.S.C.A. § 1110 (West 1991). In the veteran's case,
sinusitis was not identified, either in service or currently.
Under the case law, it is clear that a fundamental element of
a claim for service connection is competent evidence of
"current disability." See Rabideau v. Derwinski, 2 Vet App
141 (1992). In Brammer v. Derwinski, 3 Vet. App. 223 (1992),
the CAVC noted that Congress specifically limited entitlement
for service-connected disease or injury to cases where such
incidents had resulted in a disability. A "current
disability" means a disability shown by competent medical
evidence to exist at the time of the award of service
connection. Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir.
1997); Chelte v. Brown, 10 Vet. App. 268 (1997). As the CAVC
has held, the regulatory definition of "disability" is the
"...impairment of earning capacity resulting from such
diseases or injuries and their residual conditions..." 38
C.F.R. § 4.1 (2000); Hunt v. Derwinski, 1 Vet. App. 292, 296
(1991).
Under these criteria, a "disability" for VA compensation
benefit purposes is not shown to be present in this case.
Although there are diagnostic impressions of sinusitis in
postservice treatment records, there is no evidence that
sinusitis was present in service or at the time of the
contemporaneous examination. In fact, the veteran's symptoms
were attributed to allergic rhinitis, a disorder which was
not shown until many years after service separation. In the
absence of a current sinus disability, as defined by
governing law, the claim must be denied. As sinusitis has
not been shown by the evidentiary record, there is no basis
upon which to determine whether the service-connected
deviated nasal septum aggravates such disorder for the
purpose of secondary service connection.
The preponderance of the evidence is against the claim for
service connection for sinusitis and allergic rhinitis, and
the claim is denied. Since the preponderance of the evidence
is against the claim for service connection for these
conditions, the benefit of the doubt doctrine is not for
application with regard to this claim. VCAA; Gilbert, 1 Vet.
App. 49.
ORDER
Entitlement to service connection for sinusitis is denied.
RONALD R. BOSCH
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.